FEDERAL ELECTION COMMISSION

Washington, DC 20463

 MEMORANDUM

TO: The Commission

FROM: Office of Commission Secretary 

DATE: August 9, 2022

SUBJECT: Ex Parte Communication Advisory Opinion 2022-14 

(Google LLC)

 

Transmitted herewith is an ex parte communication sent to

Commissioner Ellen L. Weintraub regarding the above matter.

Attachments 

 
From: Ellen Weintraub

To: Commission Secretary Office

Cc: Lisa Stevenson; Lawrence Calvert; Neven Stipanovic; Weintraub Office

Subject: AO 2022‐14 (Google LLC)

Date: Tuesday, August 9, 2022 3:04:39 PM

Attachments: Josh Nelson Comment on AO 2022‐14 – Google’s Pilot Program to Permit Political Campaign Spam .pdf

Madam Secretary:

I received the following email attaching an otherwise public comment. I ask that it be placed in the

public file of Advisory Opinion 2022-14 (Google LLC), pursuant to 11 CFR 201.4(a).

Thank you.

Best,

Ellen Weintraub

Commissioner

From: Josh Nelson <josh@civicshout.com> 

Sent: Thursday, August 4, 2022 2:05 PM

To: FEC Commissioner Ellen L. Weintraub <CommissionerWeintraub@fec.gov>

Subject: Fwd: AO 2022-14

Commissioner Weintraub,

Given your interest in AO 2022‐14, and the significant electoral

implications Google's proposed pilot program would have, I wanted to flag my

comment for you directly.

Please let me know if you have any questions or if I can be of assistance.

Thanks,

Josh

---------- Forwarded message ---------

From: Josh Nelson <josh@civicshout.com>

Date: Thu, Aug 4, 2022 at 9:20 AM

Subject: AO 2022‐14

To: <ao@fec.gov>

Federal Election Commission 

1050 First Street, N.E. 

Washington, DC 20463 

Re: Comments in Opposition to Advisory Opinion Request 2022‐14 re Google’s Pilot

Program to Permit Political Campaign Spam

Commissioners,

I’m writing in response to Google LLC’s proposal to allow candidate committees, political

party committees, and leadership political action committees to send unsolicited spam

email without being subject to Gmail’s spam filtering algorithm, as outlined in Allen &
Overy’s July 1, 2022 Advisory Opinion Request (2022-14).

Contrary to the assertions made by Allen & Overy partner Claire Rajan, Google LLC’s

proposed pilot program would in fact constitute making in-kind contributions to Republican

campaigns and committees in two concrete ways.

1. It would directly undermine Democrats’ adherence to best practices and

significant investments in the opt-in status quo

Democrats have spent the past 20 years developing infrastructure and adhering to email

deliverability best practices to build a significant advantage in small dollar online

fundraising. These investments include but are not limited to:

Maintaining extensive training programs on best practices for campaign staff who run

email programs

Developing a robust ecosystem of vendors, consultants and technology providers

dedicated to growing opt-in email communities

Investing tens of millions of dollars or more via campaign and committee

expenditures in acquiring end-user opt-in permission to send bulk email

communications

All of these investments were made in order to adhere to well-established best practices for

email deliverability, including those specified by Gmail itself. In fact, Gmail’s help center

includes a page entitled “Prevent mail to Gmail users from being blocked or sent to spam,”

which specifies the following:

“Don’t send messages to people who didn't sign up to get messages from you.

These recipients might mark unwanted messages as spam. Future messages to

these recipients will be marked as spam.”

As a Gmail spokesperson told Axios in April in response to Republican complaints of bias in

spam filtering, “Gmail users can move messages to spam, or to any other category. Gmail

automatically adjusts the classifications of particular emails according to these user

actions.”

In other words, to the extent that Republican campaign emails are disproportionately

landing in Gmail spam folders, it is in large part due to the fact that Republican campaign

emails are disproportionately sending unsolicited spam that recipients do not want to

receive.

Changing the opt-in email status quo amounts to penalizing Democrats for making

investments in following clearly-established best practices. It would give a distinct electoral

advantage to Republican campaigns and committees who have ignored those same best

practices for years to their own detriment.

2. It would reward Republicans' disingenuous claims of Big Tech bias and mimic

their preferred policy 

Google’s proposed pilot program is clearly in response to disingenuous Republican claims

that Google and other Big Tech companies are biased against conservative causes.
Following the release of an academic paper purporting to demonstrate such bias,

Republican operatives orchestrated a public relations and advocacy effort designed to

pressure Gmail to change its rules to allow campaigns to send unsolicited spam emails.

On March 31, researchers at North Carolina State University published a paper entitled “A

Peek into the Political Biases in Email Spam Filtering Algorithms During US Election 2020.”

The paper’s big takeaway was that “Gmail marked 59.3% more emails from the right

candidates as spam compared to the left candidates, whereas Outlook and Yahoo marked

20.4% and 14.2% more emails from left candidates as spam compared to the right

candidates, respectively.”

The deeply flawed study failed to account for the fact that Republican campaigns are

notorious for sending scammy and deceptive emails to people who didn’t sign up to receive

them, and that Republican campaigns frequently fail to follow basic email deliverability best

practices, all but ensuring that they’re relegated to users’ spam folders—where they belong.

Regardless, Fox News and other right-wing media outlets pounced on the study as proof

that Gmail was intentionally undermining Republican fundraising efforts. FoxNews.com

alone published no less than four separate stories promoting the study within a 20-day

period in April.

At the same time, Republicans escalated their response. First, they shared “research”

exclusively with Fox News purporting to show that Gmail’s spam filtering algorithm cost

Republican candidates an estimated $2 billion in donations since 2019. Then on April 26,

the Republican National Committee, National Republican Congressional Committee and

National Republican Senatorial Committee filed a joint complaint formally requesting that

the Commission investigate whether Gmail is censoring Republican political emails.

The very next day, on April 27, Sen. Josh Hawley sent a letter to Google CEO Sundar

Pichai accusing the company of “dictating the outcomes of an election” and demanding

answers to a series of conspiratorial questions.

Finally, on June 16, a group of Republican senators introduced the Political BIAS Emails

Act, which would, according to one of the sponsors, “prohibit large email platforms like

Google’s Gmail from using filtering algorithms on emails sent from a political campaign

unless the owner or user of the email account took action to apply a label such as spam.”

To date, this legislation has been cosponsored by 28 Republican senators and zero

Democratic senators. 

The Commission should be fully aware that Google’s proposed pilot program is nearly

identical in substance to this highly-partisan bill that is part of the Republican agenda and is

not supported by a single elected official in the Democratic Party. Surely it’s not a

coincidence that Google’s July 1 advisory opinion request was made just 15 days after the

highly-partisan Political BIAS Emails Act was introduced in the U.S. Senate.

By implementing the proposed pilot program, which has been described in the press as “a

sop to Republicans,” Google would be intentionally catering to the Republican agenda in

response to a pressure campaign orchestrated by Republican operatives and politicians. 
For both of the reasons outlined above, I respectfully submit that the Commission must

conclude that Google LLC’s proposed pilot program would constitute an in-kind contribution

to Republican campaigns and committees.

I would be happy to discuss my concerns with the Commission at your convenience.

Thank you for your consideration.

Respectfully,

Josh Nelson

CEO, Civic Shout

Co-Founder, The Juggernaut Project
Federal Election Commission

1050 First Street, N.E.

Washington, DC 20463

Re: Comments in Opposition to Advisory Opinion Request 2022‐14 re Google’s Pilot

Program to Permit Political Campaign Spam

Commissioners,

I’m writing in response to Google LLC’s proposal to allow candidate committees, political party

committees, and leadership political action committees to send unsolicited spam email without

being subject to Gmail’s spam filtering algorithm, as outlined in Allen & Overy’s July 1, 2022

Advisory Opinion Request (2022-14).

Contrary to the assertions made by Allen & Overy partner Claire Rajan, Google LLC’s proposed

pilot program would in fact constitute making in-kind contributions to Republican campaigns and

committees in two concrete ways.

1. It would directly undermine Democrats’ adherence to best practices and significant

investments in the opt-in status quo

Democrats have spent the past 20 years developing infrastructure and adhering to email

deliverability best practices to build a significant advantage in small dollar online fundraising.

These investments include but are not limited to:

● Maintaining extensive training programs on best practices for campaign staff who run

email programs

● Developing a robust ecosystem of vendors, consultants and technology providers

dedicated to growing opt-in email communities

● Investing tens of millions of dollars or more via campaign and committee expenditures in

acquiring end-user opt-in permission to send bulk email communications

All of these investments were made in order to adhere to well-established best practices for

email deliverability, including those specified by Gmail itself. In fact, Gmail’s help center includes

a page entitled “Prevent mail to Gmail users from being blocked or sent to spam,” which

specifies the following:

“Don’t send messages to people who didn't sign up to get messages from you. These

recipients might mark unwanted messages as spam. Future messages to these

recipients will be marked as spam.”
As a Gmail spokesperson told Axios in April in response to Republican complaints of bias in

spam filtering, “Gmail users can move messages to spam, or to any other category. Gmail

automatically adjusts the classifications of particular emails according to these user actions.”

In other words, to the extent that Republican campaign emails are disproportionately landing in

Gmail spam folders, it is in large part due to the fact that Republican campaign emails are

disproportionately sending unsolicited spam that recipients do not want to receive.

Changing the opt-in email status quo amounts to penalizing Democrats for making investments

in following clearly-established best practices. It would give a distinct electoral advantage to

Republican campaigns and committees who have ignored those same best practices for years

to their own detriment.

2. It would reward Republicans' disingenuous claims of Big Tech bias and mimic their

preferred policy

Google’s proposed pilot program is clearly in response to disingenuous Republican claims that

Google and other Big Tech companies are biased against conservative causes. Following the

release of an academic paper purporting to demonstrate such bias, Republican operatives

orchestrated a public relations and advocacy effort designed to pressure Gmail to change its

rules to allow campaigns to send unsolicited spam emails.

On March 31, researchers at North Carolina State University published a paper entitled “A Peek

into the Political Biases in Email Spam Filtering Algorithms During US Election 2020.” The

paper’s big takeaway was that “Gmail marked 59.3% more emails from the right candidates as

spam compared to the left candidates, whereas Outlook and Yahoo marked 20.4% and 14.2%

more emails from left candidates as spam compared to the right candidates, respectively.”

The deeply flawed study failed to account for the fact that Republican campaigns are notorious

for sending scammy and deceptive emails to people who didn’t sign up to receive them, and

that Republican campaigns frequently fail to follow basic email deliverability best practices, all

but ensuring that they’re relegated to users’ spam folders—where they belong.

Regardless, Fox News and other right-wing media outlets pounced on the study as proof that

Gmail was intentionally undermining Republican fundraising efforts. FoxNews.com alone

published no less than four separate stories promoting the study within a 20-day period in April.

At the same time, Republicans escalated their response. First, they shared “research”

exclusively with Fox News purporting to show that Gmail’s spam filtering algorithm cost

Republican candidates an estimated $2 billion in donations since 2019. Then on April 26, the

Republican National Committee, National Republican Congressional Committee and National

Republican Senatorial Committee filed a joint complaint formally requesting that the

Commission investigate whether Gmail is censoring Republican political emails.
The very next day, on April 27, Sen. Josh Hawley sent a letter to Google CEO Sundar Pichai

accusing the company of “dictating the outcomes of an election” and demanding answers to a

series of conspiratorial questions.

Finally, on June 16, a group of Republican senators introduced the Political BIAS Emails Act,

which would, according to one of the sponsors, “prohibit large email platforms like Google’s

Gmail from using filtering algorithms on emails sent from a political campaign unless the owner

or user of the email account took action to apply a label such as spam.”

To date, this legislation has been cosponsored by 28 Republican senators and zero Democratic

senators.

The Commission should be fully aware that Google’s proposed pilot program is nearly identical

in substance to this highly-partisan bill that is part of the Republican agenda and is not

supported by a single elected official in the Democratic Party. Surely it’s not a coincidence that

Google’s July 1 advisory opinion request was made just 15 days after the highly-partisan

Political BIAS Emails Act was introduced in the U.S. Senate.

By implementing the proposed pilot program, which has been described in the press as “a sop

to Republicans,” Google would be intentionally catering to the Republican agenda in response

to a pressure campaign orchestrated by Republican operatives and politicians.

For both of the reasons outlined above, I respectfully submit that the Commission must

conclude that Google LLC’s proposed pilot program would constitute an in-kind contribution to

Republican campaigns and committees.

I would be happy to discuss my concerns with the Commission at your convenience.

Thank you for your consideration.

Respectfully,

Josh Nelson

CEO, Civic Shout

Co-Founder, The Juggernaut Project